A licence to copy?

Last month saw the launch of the NLA's revamped PR agency licence, bringing to the market a shiny new flat-rate licensing model and offering PRs everywhere a timely reminder of the dangers of copying and distributing newspaper and magazine articles without permission, says solicitor Alex Maloy.

The short answer is yes. Just like books, music and films, newspaper and magazine content (both the articles and the pictures used to illustrate them) is protected by copyright, which confers on the owner of that content the exclusive right to exploit it. These rights will include, among other things, the right to copy that content and, crucially, to prevent others from doing so.

But what is copyright?

Often misunderstood, copyright is one of the ‘big four’ intellectual property rights, an intangible asset that sits alongside patents, design rights and trade marks.

It is designed to protect the expression of ideas, whether these are words, pictures or even performances. But as well as 'literary' copyright in articles and 'artistic' copyright in images, there is also copyright in the typographical arrangement (or the design and layout) of a newspaper or magazine as a whole.

Consequently, by copying and sending to clients individual articles or pages from a newspaper or magazine – whether by photocopying or scanning physical material or by cutting and pasting or downloading online content – PRs without a licence will almost certainly infringe the rights of the publication and invite a claim for copyright infringement. The consequences of doing so can be expensive, both financially and reputationally.

What are the exceptions?

The Copyright Designs and Patents Act 1988, which governs copyright law in the UK, contains a number of 'fair dealing' defences that legitimise copying that would otherwise be infringing.

Fair dealing is a tricky concept. Its precise meaning has been the subject of considerable courtroom debate, but the rule of thumb is that courts often take a hostile view where fair dealing is claimed by commercial users (which PRs certainly are), especially when the use in question deprives the copyright owner of an income.

The most relevant defences in the present context are fair dealing for the purposes of criticism, review, quotation or news reporting.

However, for PRs these are square pegs for round holes. A quotation defence is unlikely to succeed where the claimed 'quotation' in fact consists of the entire article, while recent case law shows that the news reporting defence is a public interest defence and is not available to private commercial users.

Equally, criticism and review are problematic, since PRs cannot realistically claim that they are supplying clippings to exercise the critical faculties of their clients.

What’s the answer then?

Get a licence. Prior to the founding of the NLA in 1996, PRs would have been required to obtain a separate licence from each and every publication.

There are of course publications that are not covered by the NLA’s licence, and you will need to go direct to the copyright owner in these cases, but these are the exceptions and the NLA licence is still a convenient way to reduce the risk of a costly claim.